1
Significant doubts regarding the nature of this transfer and Righthaven’s interest in thecopyright have been raised in this and other cases. The nature of Righthaven’s interest in thecopyrighted material is not, however, relevant to my resolution of Defendant’s Motion forAttorney Fees and I decline to address it.1
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
Judge John L. KaneCivil Action No.
1:11-cv-00211-JLKRIGHTHAVEN LLC
, a Nevada Limited Liability CompanyPlaintiff,v.
BRIAN D. HILL
, an individual,Defendant.
ORDER
Kane, J.On January 27, 2011, Plaintiff Righthaven LLC filed suit against Defendant Brian D.Hill, alleging that Mr. Hill had infringed its copyright in a photograph depicting a TransportationSecurity Administration Agent performing an enhanced pat-down search at Denver InternationalAirport (the “Work”). The Work was originally published in, and the copyright held by,
The Denver Post
, but at some point following its original publication on November 18, 2010, thecopyright was transferred to Plaintiff Righthaven LLC.
1
On or about December 1, 2010,Defendant Brian D. Hill displayed the Work on his website, uswgo.com, without seeking orreceiving permission to do so from Righthaven.
Case 1:11-cv-00211-JLK Document 43 Filed 09/09/11 USDC Colorado Page 1 of 9
2
In its opposition, Righthaven argued that Mr. Hill’s self-styled
pro se
answer toRighthaven’s complaint constituted his answer and refused to acquiesce to the request of Mr.Hill’s newly retained counsel to file an amended answer. Over Righthaven’s objection , Igranted Mr. Hill’s motion and allowed an extension of time to answer or otherwise respond toRighthaven’s complaint.
3
The parties dispute the reasons for Righthaven’s voluntary dismissal. Righthaveninsists that it dismissed this case in light of Mr. Hill’s health problems and limited financialresources; Mr. Hill argues Righthaven dismissed this case because it had no desire to actuallylitigate the merits of its claim. As is often the case, I believe there is some truth to both versionsof events, but I need not resolve this issue to determine Mr. Hill’s motion and I decline to do so.2Based on these alleged facts, Righthaven filed suit against Mr. Hill alleging copyrightinfringement in violation of the anti-infringement provisions of the federal Copyright Act.
See
17 U.S.C. § 501. Apparently unbeknownst to Righthaven, however, Mr. Hill is a mentally andphysically disabled young man who requires around-the-clock attention, which is provided byhis mother. Because of his disabilities, neither Mr. Hill nor his mother can work; their only formof income is Mr. Hill’s monthly Social Security disbursement. Initially, Righthaven showedlittle sympathy for Mr. Hill’s poor health and limited financial resources. It opposed Mr. Hill’smotion for an extension of time to file an answer,
2
and attempted to impose numerous conditionsin its settlement negotiations with Mr. Hill. Mr. Hill refused to accept Righthaven’s proposedsettlement, instead filing an Omnibus Motion to Dismiss, Transfer Venue, and for Attorney Fees(doc. 12).Shortly thereafter, for reasons left to speculation, Righthaven voluntarily dismissed itssuit against Mr. Hill with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
3
AlthoughRighthaven’s voluntarily dismissal mooted the majority of Mr. Hill’s motion, I retained jurisdiction to determine whether an award of attorney fees is warranted. The parties have fullybriefed the issues related to Mr. Hill’s Motion for Attorney Fees (doc. 12), and it is ready for
Case 1:11-cv-00211-JLK Document 43 Filed 09/09/11 USDC Colorado Page 2 of 9
3disposition. Based on the forthcoming discussion and analysis, Mr. Hill’s motion is DENIED.ANALYSISIn the United States, it is well-settled that prevailing parties are not entitled to collectattorney fees from the loser.
See Alyeska Pipeline Svc. Co. v. Wilderness Soc’y
, 421 U.S. 240,247 (1975);
see also Johnson v. City of Tulsa
, 489 F.3d 1089, 1103 (10th Cir. 2007). The“American Rule,” is not, however, without exceptions, namely: the bad-faith exception, thecommon fund exception, the willful disobedience of a court order exception, and the commonbenefit exception.
Alyeska
, 421 U.S. at 257-59;
see also Aguinaga v. United Food &Commercial Workers Int’l Union
, 993 F.2d 1480, 81 (10th Cir. 1993). Additionally, Congresshas carved out exceptions to this rule, allowing for the recovery of attorney fees under selectstatutes granting or protecting various federal rights.
Id.
at 260. Finally, many states havecreated exceptions to this rule, and the exceptions of the forum state apply when a federal court’s jurisdiction rests upon diversity of citizenship.
Jones v. Denver Post Corp.
, 203 F.3d 748, 757(10th Cir. 2000).In the instant case, Mr. Hill invokes four of these exceptions as potential bases for theawarding of his attorney fees: three statutory (§ 505 of the Copyright Act, 28 U.S.C. § 1927, andC.R.S. 13-17-102) and one judicial (the bad-faith exception). I address each
seriatim
.
§ 505 of the Copyright Act
Section 505 of the Copyright Act allows a court to award attorney fees
to the party whoprevails in an action brought under federal copyright law. 17 U.S.C. § 505. Notably, thisprovision allows the court to award fees to either a prevailing plaintiff or a prevailing defendant.
See Fogerty v. Fantasy, Inc.
, 510 U.S. 517, 533 (1994). Courts are permitted to exercise their
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